Director of Public Prosecutions v Wang (Ruling No 1)

[2020] VSC 438

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0011

DIRECTOR OF PUBLIC PROSECUTIONS

v 

NING WANG

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2020
DATE OF RULING:	20 July 2020
CASE MAY BE CITED AS:	DPP v Wang (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2020] VSC 438

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CRIMINAL LAW – Practice and procedure – Application for trial by judge alone under COVID-19 emergency provisions – Consent by both parties – Interests of justice – Delay – Complex medical evidence – Case not involving the application of community standards – Potentially prejudicial evidence – Involvement of interpreters – Application granted

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms K Churchill	Ms Abbey Hogan, Solicitor for Public Prosecutions
For the Accused	Mr P Morrissey SC	Paul Vale Criminal Law

HER HONOUR:

1. In January 2020, Ning Wang was committed to stand trial for the murder of his sister, Qin Wang, and for intentionally causing injury to his nephew, Kuan Yang.  Both offences are alleged to have occurred on 27 February 2019 in Melbourne.  His trial had been listed for hearing before a jury, commencing on 14 September 2020, on an estimated duration of 15 days.

1. By notice dated 13 July 2020, Mr Wang applied for a trial by judge alone, under s 420D of the Criminal Procedure Act 2009 (‘the CPA’). The prosecution supported the application. Even where such an application is unopposed, it still remains for the court to determine whether it is in the interests of justice to order trial by judge alone. Accordingly, on 16 July, I heard oral submissions from both sides in relation to the application. At the conclusion of the hearing, I announced that I would be ordering a trial by judge alone, for reasons to be published; these are those reasons.

1. The option of holding a criminal trial by judge alone arose in Victoria as a result of Parliament’s statutory response to the COVID-19 pandemic. The legislative framework put in place by Parliament was set out and discussed at length by Chief Judge Kidd, in the recent decision in DPP v Combo[1].  I respectfully agree with and adopt his Honour’s very helpful analysis.

   [1][2020] VCC 726, especially at [32]-[66].

1. There is no doubt that the first three requirements of s 420D are satisfied in this case, namely:

(a)       Each charge is for an offence under the law of Victoria;

(b)      The only accused, Mr Wang, consents to the making of the order; and

(c)       I am satisfied that Mr Wang has obtained legal advice on whether to give that consent, including legal advice on the effect of the order.

1. The fourth requirement in s 420D is that the court must consider that it is in the ‘interests of justice’ to make the order for trial by judge alone. As Chief Judge Kidd discussed in Combo,[2] the expression ‘interests of justice’ is broad, and includes not only the interests of the parties, but also larger questions of public interest and policy considerations.  The public interest includes ensuring the integrity and proper functioning of the criminal justice system within the courts, as well as ensuring that the accused receives a fair trial according to law.

   [2]Ibid, especially at [48].

Delay

1. Jury trials were suspended in the Supreme Court in March 2020, as a result of the COVID-19 pandemic.  In June 2020, the court announced its intention to resume jury trials on 20 July 2020.  Unfortunately, the resumption date has been delayed, due to Melbourne being placed back in lockdown for six weeks, starting in the second week of July.  Whether or not jury trials will be able to resume at the end of that period will depend on rates of infection, and other matters outside the court’s control.

1. Whilst the current social distancing requirements are in place, this court has only three courtrooms that are large enough for the conduct of jury trials. 

1. This trial is listed to commence on 14 September.  It is not possible to say at this time whether or not jury trials will have resumed by then.  If they have not, then this trial would have to be adjourned off until the second term of 2021, were it to proceed with a jury. 

1. Even if jury trials have resumed by 14 September, there are other jury trials which would be able to proceed on the current trial date in place of this one.  If this matter proceeds as a trial by judge alone, that would free up one of the three jury courts for another case or cases, for the benefit of other parties awaiting a jury trial.

1. There is a further benefit in ordering this trial to proceed by judge alone.  Even if Melbourne is still in lockdown on 14 September, the parties have agreed that this trial could proceed as a trial conducted entirely remotely, if heard by judge alone.   That will avoid delay, and bring certainty, for Mr Wang and the victims’ families.

The nature of the case

1. This case has a number of features that make it well-suited to trial by judge alone.

1. Mr Wang does not dispute that he assaulted his sister, Qin, in her living room, during an argument about financial matters and the care of their elderly father.  Nor does he dispute subsequently placing her body in the boot of his car, and driving to the home of their sister, Jin.  When he got there, he attacked Jin’s son, Kuan, with a metal pole in the front yard.  He told Kuan and a number of other people that Qin’s body was in the boot of the car.  It is not clear whether Qin was dead or alive when she was placed in the boot.  However, by the time the police arrived, they found Qin’s dead body in the boot. 

1. The issues at trial will be relatively narrow.  The primary issue in dispute in relation to the murder charge is that of intent; Mr Wang says he did not intend to kill or cause really serious injury to Qin when he assaulted her.  It is still not entirely clear whether causation will also be in issue, as the defence are awaiting a final report from their forensic pathologist.  In order to determine the issues of intent and causation, the fact finder will need to consider complex medical evidence relating to Qin’s injuries, in the context of her complicated medical history and pre-existing health conditions.  It is not uncommon for juries to have to consider medical evidence, to determine questions of intent and causation; but the complexity of the expert evidence in this case makes it ideally suited for consideration by judge alone.

1. This case does not raise any issue such as reasonableness or dangerousness, which might require the application of community standards – matters for which juries are ideally suited.

1. Defence counsel raised a further matter in support of the application for trial by judge alone.  Evidence will need to be led about Mr Wang’s subsequent conduct in placing his sister in his boot, and driving around with her there.  Whether she was dead or alive at that time, his conduct is likely to offend prospective jurors.  Although I accept that it is potentially prejudicial, I have not given it much weight in deciding to order a judge alone trial.  That is because trial judges routinely direct juries not to let their feelings about post-offence conduct such as this influence their decision.

Interpreters

1. Mr Wang, and a number of the witnesses, will require a Mandarin interpreter.  When witnesses give evidence with the assistance of an interpreter, everybody in court listens to both the witness and the interpreter.  However, when an accused requires the assistance of an interpreter, the interpreter usually sits in the dock, next to the accused, and whispers a simultaneous translation to the accused alone. 

1. Whilst the current social distancing requirements are in place, any interpreter who was assisting an accused would need to sit at least 1.5 metres away from the accused, and speak in something louder than a whisper in order to be heard.  That may well prove to be more distracting for a jury than for a judge who is familiar with the use of interpreters.  Furthermore, if the trial ended up being conducted remotely by judge alone, there would not even be any distraction for the judge, because the interpreter could translate to the accused via a telephone.

1. Mr Wang does speak some basic English, and may be able to follow much of the lay witnesses’ evidence with only a small amount of assistance from an interpreter.  However, he will require constant translation for the medical evidence, which is so central to the murder charge.  The fact that his interpretation needs can be met more easily with a judge alone trial is an additional consideration in favour of adopting that course.

Conclusion

1. For all of those reasons, I am satisfied that it is in the interests of justice to order that this trial be by judge alone.

1. Pursuant to s 420D of the CPA, I order that the charges against the accused in indictment K10532361 be heard and determined by a judge alone, without a jury.

1. The trial date will remain as 14 September 2020, but the trial estimate will be reduced from 15 days to 10-12 days.